## Illinois Official Reports

Appellate Court

People v. Gayfield , 2014 IL App (4th) 120216-B

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appe llee, v. J.W. GAYFIELD, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-12-0216

Rule 23 Order filed Modified opinion filed upon denial of rehearing March 5, 2014

July 8, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Defendant’s conviction for the Class 2 form of aggr avated unlawful use of a weapon under section 24-1.6(a)(1), (a)(3)( A), (d) was void
pursuant to Aguilar

, notwithstanding the fact that Aguilar “specifically limited” its holding to the Class 4 f orm of the offense,

since both the Class 2 and Class 4 form of the offe nse require proof of

the same elements.

Decision Under

Review Appeal from the Circuit Court of Champaign County, No. 11-CF-1816; the Hon. Thomas J. Difanis, Judge, presiding.

Judgment Vacated.- 2 -

Counsel on Appeal Michael J. Pelletier, Jacqueline L. Bullard, and Ke lly M. Weston, all of State Appellate Defender’s Office, of Springfiel d, for appellant.

Julia Rietz, State’s Attorney, of Urbana (Patrick D elfino, David J. Robinson, and David E. Mannchen, all of State’s Att orneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 On January 11, 2012, a jury convicted defendant, J .W. Gayfield, of aggravated unlawful

use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a )(3)(A), (d) (West 2010)), a Class 2 offense based on a prior felony conviction. The tri al court sentenced defendant to seven years in prison. Defendant appealed, arguing the prosecut or made improper remarks in his closing argument, thereby denying defendant a fair trial. O n August 19, 2013, this court issued an order finding the prosecutor’s closing argument was not improper and affirming the trial court’s judgment. People v. Gayfield , 2013 IL App (4th) 120216-U. ¶ 2 On August 26, 2013, defendant filed a petition for rehearing pursuant to Illinois Supreme Court Rule 367 (Ill. S. Ct. R. 367 (eff. Dec. 29, 2 009)). For the first time, defendant asked this

court to consider whether his conviction should be reversed, asserting the AUUW statute was unconstitutional. On September 9, 2013, this court denied defendant’s petition for rehearing. ¶ 3 On October 9, 2013, defendant filed a motion for s upervisory order in the Illinois Supreme

Court, which the supreme court granted on November 6, 2013. People v. Gayfield , Nos. 116726, 116728 (Ill. Nov. 6, 2013) (nonprecedential supervisory order directing vacatur of judgment and denial of petition for rehearing and r econsideration in light of People v. Aguilar

, 2013 IL 112116, 2 N.E.3d 321, and denying leave to appeal as moot). As a result, the supreme court directed this court to vacate our judgment in Gayfield , and our order denying the petition for rehearing, and to reconsider our judgment in li ght of Aguilar , to determine whether a

different result was warranted. ¶ 4 In accordance with the supreme court’s direction, we vacated our prior judgment and our

order denying the petition for rehearing, and recon sidered our prior judgment in light of Aguilar . We again affirmed, finding that Aguilar did not change the result in this case. People v. Gayfield , 2014 IL App (4th) 120216-UB, ¶ 5. ¶ 5 On March 25, 2014, defendant filed a petition for rehearing. We now modify our decision

upon denial of defendant’s petition for rehearing. For the reasons set forth below, we vacate defendant’s Class 2 conviction for AUUW (720 ILCS 5 /24-1.6(a)(1), (a)(3)(A), (d) (West 2010)).- 3 - ¶ 6 I. BACKGROUND
¶ 7 On November 3, 2011, the State charged defendant b y information as an armed habitual

criminal (720 ILCS 5/24-1.7(a)(1) (West 2010)) (cou nt I). On January 4, 2012, the State charged defendant by information with AUUW (720 ILC S 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)) (count II), a Class 2 offense based on a pri or felony conviction. The State later

dismissed count I. ¶ 8 At defendant’s January 2012 jury trial, Officer Di eter Rene Wissel of the Rantoul police

department testified that, on November 2, 2011, at approximately 2 a.m., he was “running license plates” on Route 136 in Rantoul. Wissel tes tified he had “cause for concern” upon checking the license plate on a gray Honda Accord t hat he observed traveling approximately five miles per hour over the posted speed limit. Wi ssel initiated a traffic stop and contacted a sergeant regarding “officer safety concerns.” Wisse l found defendant driving the vehicle and Walter Cunningham in the front passenger seat. Acco rding to Wissel, both defendant and Cunningham appeared “extremely nervous.” Upon reque st, defendant provided identification and Cunningham stated his name. Wissel returned to his squad car and ran a law-enforcement-agencies data system (LEADS) inquir y on both names. Wissel remained in his squad car until Officer Kyle Gregg and Sergeant Richard Welch, both of the Rantoul police department, arrived at the scene.
¶ 9 Welch instructed Wissel and Gregg to secure the ve hicle and check the occupants for

weapons. Wissel performed a pat-down search of defe ndant, revealing a fully loaded semiautomatic pistol in his left chest pocket and 2 0 rounds of ammunition in a right front pants pocket. Welch testified that he saw Wissel remove t he gun from “an inner pocket somewhere[;] I believe it was the jacket pocket or the shirt pocket.” ¶ 10 Gregg testified that he was tasked with watching d efendant’s passenger on November 2,

2011. He assisted Wissel in placing handcuffs on de fendant. Gregg observed the semiautomatic handgun after it had been removed fro m defendant and placed in the trunk of Wissel’s squad car. ¶ 11 Cunningham testified on defendant’s behalf. Defend ant is his nephew. Cunningham did

not see defendant with a gun that night and did not see a gun in the vehicle. ¶ 12 The jury found defendant guilty of AUUW. On Januar y 24, 2012, defendant filed his

posttrial motion arguing, in part, that the trial c ourt erred “in overruling the Defendant’s objection to the State’s closing remarks.” On Febru ary 29, 2012, the trial court denied defendant’s posttrial motion and sentenced defendan t to seven years in prison. ¶ 13 As stated, defendant appealed and this court affir med. Gayfield , 2013 IL App (4th)

120216-U. On September 12, 2013, our supreme court determined section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute was unconstituti onal on its face. Aguilar , 2013 IL 112116, ¶ 22, 2 N.E.3d 321. On November 6, 2013, the suprem e court issued a supervisory order directing this court to vacate our judgment in Gayfield , and our order denying the petition for rehearing, and to reconsider our judgment in light of Aguilar

. People v. Gayfield , No. 116726, 116728 (Ill. Nov. 6, 2013) (nonprecedential supervi sory order on denial of leave to appeal). On December 19, 2013, our supreme court entered a modi fied opinion upon denial of the State’s- 4 -

petition for rehearing in Aguilar

. Aguilar , 2013 IL 112116, 2 N.E.3d 321. In the modified opinion, the court noted: “In response to the State’s petition for rehearing in this case, we reiterate and emphasize that our finding of unconstitutionality i n this decision is specifically limited to the Class 4 form of AUUW, as set forth in sectio n 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute. We make no finding, express or implie d, with respect to the constitutionality or unconstitutionality of any oth er section or subsection of the AUUW

statute.” Aguilar , 2013 IL 112116, ¶ 22 n.3, 2 N.E.3d 321. ¶ 14 Upon reconsidering our original judgment in light of the modified decision in Aguilar , as

directed by the supreme court, we determined Aguilar was inapplicable to the instant case, stating “the supreme court in Aguilar specifically limited its modified opinion to the C lass 4 form of AUUW,” whereas in this case, defendant was convicted of the Class 2 form of the

offense. Gayfield , 2014 IL App (4th) 120216-UB, ¶ 17. ¶ 15 On March 25, 2014, defendant filed a petition for rehearing, asserting “[i]n upholding [his]

conviction, and thus the constitutionality[ ] of th e ‘Class 2 form’ of aggravated unlawful use of a weapon, this [c]ourt impliedly [found] that felon status is an element and not a sentencing-enhancement factor. This holding is not dictated by *** Aguilar *** and is contrary to established Illinois Supreme Court law. ” For the reasons set forth below, we modify our decision upon denial of rehearing and va cate defendant’s conviction.

¶ 16 II. ANALYSIS ¶ 17 A. AUUW Conviction ¶ 18 We first reconsider whether our supreme court’s mo dified opinion in Aguilar renders his

Class 2 conviction for AUUW void. In this case, the State charged defendant by information with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2 offense based on a prior felony conviction. Section 24-1.6 of the AU UW statute in effect at the time of defendant’s November 2011 offense provides in part: “(a) A person commits the offense of aggravated un lawful use of a weapon when he or she knowingly: (1) Carries on or about his or her person or in an y vehicle or concealed on or about his or her person except when on his or her l and or in his or her abode, legal dwelling, or fixed place of business, *** any pisto l, revolver, stun gun or taser or other firearm; or (2) Carries or possesses on or about his or her pe rson, upon any public street, alley, or other public lands within the corporate l imits of a city, village or incorporated town, except when an invitee thereon o r therein, for the purpose of the display of such weapon or the lawful commerce in we apons, or except when on his or her own land or in his or her own abode, legal d welling, or fixed place of business, *** any pistol, revolver, stun gun or tas er or other firearm; and (3) One of the following [eight] factors is presen t: (A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense[.]” 720 ILCS 5/24-1.6 (W est 2010).- 5 -

Subsection (d) of the AUUW statute then provides th e sentencing scheme that applies to a particular offender based on additional factors. Th at subsection provides, in relevant part, as
follows:
“(d) Sentence. (1) Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony for which th e person shall be sentenced to a term of imprisonment of not less than 3 years and not mo re than 7 years.

*** (3) Aggravated unlawful use of a weapon by a perso n who has been previously convicted of a felony in this State or another juri sdiction is a Class 2 felony for which the person shall be sentenced to a term of imprison ment of not less than 3 years and not more than 7 years.” 720 ILCS 5/24-1.6 (West 2010). ¶ 19 In Aguilar , the defendant was found guilty of the Class 4 off ense of AUUW–because it was his first offense–and sentenced to 24 months’ proba tion. See Aguilar , 2013 IL 112116, ¶ 7, 2 N.E.3d 321. Relying on Moore v. Madigan , 702 F.3d 933 (7th Cir. 2012), our supreme court reversed the defendant’s conviction, holding that, “as the Seventh Circuit did in Moore , we here hold that, on its face, *** section 24-1.6(a)( 1), (a)(3)(A), (d) [of the AUUW statute] violates the right to keep and bear arms, as guaran teed by the second amendment to the United States Constitution” because it “categorically proh ibits the possession and use of an operable

firearm for self-defense outside the home” and “amo unts to a wholesale statutory ban on the exercise of a personal right that is specifically n amed in and guaranteed by the United States Constitution, as construed by the United States Sup reme Court.” Aguilar , 2013 IL 112116, ¶¶ 21-22, 2 N.E.3d 321. ¶ 20 The supreme court subsequently modified its decisi on in Aguilar to hold only that “on its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates t he right to keep and bear arms.” (Emphasis added.) Id . ¶ 22, 2 N.E.3d 321. While the Aguilar court specified its modified decision “is specifically limited to the C lass 4 form of AUUW,” it continued, “[w]e make no finding, express or implied, with respect t o the constitutionality or unconstitutionality of any other section or subsection of the AUUW stat ute.” Id

. ¶ 22 n.3, 2 N.E.3d 321. The supreme court otherwise left its original decision fundamentally unchanged. ¶ 21 The modified decision in Aguilar was not unanimous. In her dissenting opinion, Chief

Justice Garman noted the issue raised by defendant on appeal was whether subsections (a)(1) and (a)(3)(A) of the AUUW statute–which when combin ed with subsection (a)(2) yield 18 possible different offenses–were facially unconstit utional. Id. ¶¶ 34-35, 2 N.E.3d 321 (Garman, C.J., dissenting). The State, however, in its petition for rehearing, “fundamentally redefined the issue” by arguing these sections were not facially unconstitutional because, pursuant to subsection (d) “ which governs sentencing ,” they could still be applied to felons. (Emphasis added.) Id. ¶¶ 33, 36, 2 N.E.3d 321 (Garman, C.J., dissenting)

. ¶ 22 In her dissenting opinion, Justice Theis expressed concern that the defendant never raised

the sentencing issue at all and that his argument t hat the AUUW statute was facially unconstitutional was “only dependent upon the eleme nts of the offense,” not the class of felony. Id . ¶ 43, 2 N.E.3d 321 (Theis, J., dissenting). Accor ding to Justice Theis, the majority misinterpreted Moore , which did not limit its unconstitutionality holdi ng to the Class 4 form of AUUW as the majority concluded, but rather “found t he statute unenforceable based upon its

consideration of the elements of the offense.” Id . ¶ 44, 2 N.E.3d 321 (Theis, J., dissenting).- 6 - ¶ 23 As Chief Justice Garman and Justice Theis noted in their respective dissents, and as the

language of the statute makes clear, subsection (d) of the AUUW statute (720 ILCS 5/24.1(d) (West 2010)) is a sentencing provision. In fact, in People v. Zimmerman , 239 Ill. 2d 491, 500-01, 942 N.E.2d 1228, 1234 (2010), our supreme c ourt specifically held that subsection (d) is a sentencing provision. The issue in Zimmerman was whether a defendant’s previous adjudication as a delinquent minor for an act that if committed by an adult would be a felony is

an element of the offense of AUUW or whether it is a sentencing enhancement. Id . at 496-97, 942 N.E.2d at 1232. The defendant was charged under section 24-1.6(a)(2) of the AUUW statute because he was in possession of a firearm i n a vehicle and had previously been adjudicated delinquent for an offense that, if comm itted by an adult, would be a felony. Id . at 493-94, 942 N.E.2d at 1230. ¶ 24 The Zimmerman court concluded that the prior delinquency adjudica tion was indeed an

element of AUUW rather than a sentence-enhancing fa ctor. Id . at 500, 942 N.E.2d at 1234. The court stated, “[s]ubsection (a) sets forth the elem ents of the offense of [AUUW]. In order to convict a defendant, the State must prove beyond a reasonable doubt the elements set forth in subsection (a)(1) or (a)(2), in addition to one of the nine factors in subsection (a)(3).” Id. at 499, 942 N.E.2d at 1233. (At the time of Zimmerman’ s offense, subsection (a)(3) listed nine factors.) The factors enumerated in subsection (a)( 3) “transform the crime from ‘simple’ unlawful use of a weapon to [AUUW].” Id . “In a separate subsection entitled ‘Sentence,’ subsection (d) provides that the offense is a Class 4 felony” and then “lists several factors which increase an individual’s sentence for [AUUW] from one classification to a higher

classification.” Id. at 500, 942 N.E.2d at 1233-34. ¶ 25 After examining the statute as a whole, the Zimmerman court found “the legislature clearly

intended subsection (a)(3)(D) to be an element of t he offense of [AUUW] rather than a factor

used to increase a defendant’s sentence.” Id . at 500, 942 N.E.2d at 1234. The court further noted, “it would be illogical for the General Assem bly to include a sentence-enhancing factor in a list with eight other factors which constitute an element of the offense.” Id . Thus, the

Zimmerman court held that the elements of AUUW are contained in subsection (a), while the sentences and sentencing enhancing factors are cont ained in subsection (d). ¶ 26 In People v. Campbell , 2013 IL App (4th) 120635, 2 N.E.3d 1249–a decisio n filed five

days after Aguilar was modified, and in which we recognized our suprem e court’s decision to limit its holding to the Class 4 form of AUUW–this court reversed the defendant’s Class 2 felony conviction for AUUW. The State in Campbell argued that because the defendant was a convicted felon, his conviction under section 24-1. 6(a)(1), (a)(3)(A) was constitutional. This court disagreed and stated:

“The State seems to misunderstand the nature of th e supreme court’s decision in Aguilar . The court in Aguilar did not merely hold that section 24-1.6(1)(a), (a) (3)(A) of the Code was unconstitutional as applied in that ca se–the court held that the statute was

unconstitutional on its face . [Citation.] ‘A statute is facially unconstitution al if there are no circumstances in which it could be validly appli ed.’ [Citation.] Because section 24-1.6(a)(1), (a)(3)(A) of the Code is unconstituti onal on its face, neither defendant’s status as a felon nor any other factor could render his conviction under that provision of the [AUUW] statute constitutional.” (Emphasis in or iginal.) Id . ¶ 14, 2 N.E.3d 1249 (quoting Lucien v. Briley , 213 Ill. 2d 340, 344, 821 N.E.2d 1148, 1150 (2004 )).- 7 - ¶ 27 As in Campbell , defendant here was convicted of the Class 2 form of AUUW. Specifically,

because defendant had a prior felony conviction, th e offense of AUUW was elevated to a Class 2 offense, with the result being defendant would be required to serve a longer prison sentence upon his conviction than he would without the prior felony. Also as in Campbell , the State did not charge defendant with violating section 24-1.1 of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1 (West 2010)), which prohibits felons from possessing firearms. Rather, the State charged defendant with violating section 24-1 .6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), w hich prohibits the possession of firearms under certain circumstances, none of which involve having a prior felony conviction. ¶ 28 The elements of the offense for both the Class 4 a nd Class 2 forms of the AUUW statute at

issue in this case are identical. Under both forms, the State must prove either (1) a defendant “[c]arrie[d] on or about his or her person or in an y vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, *** any pistol, revolver, stun gun or tas er or other firearm” and (2) “the firearm possessed was uncased, loaded and immediately acces sible at the time of the offense.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010). These a re the only two elements the State had to prove to obtain a conviction for AUUW in this case. The State was not required to prove

defendant was a felon. ¶ 29 As previously noted, defendant was charged by info rmation with violating section

24-1.6(a)(1), (a)(3)(A) of the AUUW statute. The St ate further alleged “the defendant has previously been convicted of a felony under the law s of the [S]tate of Illinois,” thus enhancing

the classification of the offense from a Class 4 fe lony to a Class 2 felony. Pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), “the fact of such prior conviction and the State’s inten tion to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial.” (Emphasis added.) ¶ 30 Defendant here asserts his conviction of the “Clas s 2 form” of AUUW cannot be upheld on

the basis he was convicted of a different offense t han the defendant in Aguilar . He argues “[t]he ‘Class 2 form’ of AUUW is simply a harsher p unishment for the offense of AUUW, an offense that no longer exists” after Aguilar . We agree. Even though the Aguilar court “specifically limited” its holding to the Class 4 f orm of the offense, we cannot see how the

Class 4 form of the AUUW statute can be unconstitut ional on its face, but the Class 2 form is not, since both classes of the offense require the State to pr ove the exact same elements

. Consistent with our prior decision in Campbell , we find defendant’s conviction for AUUW under section 24-1.6(a)(1), (a)(3)(A) is void. Cf

. People v. Green , 2014 IL App (4th) 120454, ¶ 13 (noting, in dicta , that the modified Aguilar did not apply to the Class 2 form of AUUW). ¶ 31 We acknowledge our sister districts have arrived a t a different conclusion. People v. Burns

,

2013 IL App (1st) 120929, 4 N.E.3d 151; People v. Soto , 2014 IL App (1st) 121937, 7 N.E.3d 823; People v. Moore , 2014 IL App (1st) 110793-B, 8 N.E.3d 1271; People v. Charles , 2014 IL App (1st) 112869-U; People v. Johnson , 2014 IL App (3d) 120778-U. In these cases, the appellate courts held that, based on the specific r eferences to the Class 4 form of the offense in

the modified Aguilar , the defendants’ Class 2 felony convictions under the AUUW statute were not void. We respectfully disagree with their analyses and believe, for the reasons identified, constitutional jurisprudence dictates t he result we reach here.- 8 - ¶ 32 We therefore vacate defendant’s conviction for AUU W (720 ILCS 5/24-1.6(a)(1),

(a)(3)(A), (d) (West 2010)).

¶ 33 B. Prosecutor’s Closing Argument ¶ 34 Because we vacate defendant’s conviction for AUUW, we need not consider whether he

was denied a fair trial due to alleged improper rem arks made by the prosecutor during closing
argument.

¶ 35 III. CONCLUSION ¶ 36 For the foregoing reasons, we modify our decision upon denial of rehearing and vacate

defendant’s Class 2 conviction for AUUW (720 ILCS 5 /24-1.6(a)(1), (a)(3)(A), (d) (West 2010)).

¶ 37 Vacated.